$42K pay raise under scrutiny – again

Gavilan College President Steve Kinsella’s $42,000 salary raise is under fire again – though this time it’s because a local Latino advocacy group alleges the Gavilan College board violated the Brown Act in an October meeting when they approved increasing his pay from $234,090 to $276,090 by 2015.

An expert on California’s open meetings law backed the group’s claim that the closed session agenda and setting were illegal.

The League of United Latin American Citizens chapter in Hollister this week submitted a request to Assemblyman Luis Alejo, D-Watsonville, to investigate allegations the Gavilan board violated the Brown Act at the Oct. 26, 2011 meeting where trustees agreed 6-1 to OK the lucrative pay increase.

LULAC pointed to a section of the open meetings law that states public boards must publish a brief, general description of their plans for action or discussion. Without mentioning compensation or a contract, the Gavilan agenda from Oct. 26 listed “public employee performance evaluation” for the president and “public employee appointment.”

“If it simply says ‘performance evaluation’ and didn’t specify to include a potential change in compensation, then the notice would be insufficient and it would be a violation of the act,” said Jim Ewert, general counsel for the California Newspaper Publishers Association who lobbies to support open meetings laws.

Additionally, the Brown Act governing open meetings prohibits legislative bodies from even entering closed session to discuss employee compensation, unless it is a decrease in pay due to disciplinary action, Ewert said.

Board Trustee Walt Glines however, said that Gavilan trustees “always consult their attorney for most agendas, and any agenda that has a closed discussion.”

“We discussed this to make sure that we met legal notice about the special meeting,” he said. “If our attorney agrees that we did not follow proper procedure, then we would re-agendize it, and take corrective action so we can comply with the law.”

Glines said Wednesday he has not received a copy of the investigation request submitted to Alejo from LULAC. To his knowledge, neither has Kinsella or the other board members.

At that special closed session meeting on Oct. 26 – which required just a 24-hour notice to the public – the board approved the contract extension in light of Kinsella being named a finalist for the chancellor post at West Valley-Mission Community College District. The new contract increased Kinsella’s salary on Jan. 1 from $234,090 to $255,090. It is set to reach $276,090 by 2015 – with no apparent cap – when he would also receive a $31,500 lump sum if he stays with the college until that point. Kinsella’s prior contract awarded him 3 percent annual increases until 2015.

Gavilan College could have had the decision rescinded if a “cure and correct” letter came to the board within 90 days of the approval, Ewert said. The only remedy left at this point is “declaratory relief” – which acts more like a censure from the courts, but allows increased, potential enforcement if there is evidence pointing to a pattern of violations, he said.

While the meeting’s legality is now in question, the contract’s approval and the compensation package caused immediate outrage from the public, particularly at a time when student fees are skyrocketing and community colleges are faced with massive cuts.

Kinsella, Gavilan president since 2003, did not return requests for comment.

Comparatively, at the Los Angeles Unified School District – the second largest public school district in the nation with 672,000 students – Superintendent John Deasy earns $275,000. In January, the California State University systemn established a policy that caps salaries at $325,000 for newly hired presidents; or raises salaries by no more than 10 percent of what the predecessor made.

Aurelio Zuniga, a former San Benito High School trustee, is with the Hollister LULAC chapter and was among those who questioned the contract publicly after its approval. He and others questioned the timing of the increase for a college with a relatively small enrollment, fewer than 6,000 students, compared with an array of others where presidents make less money than Kinsella.

After looking into it further, though, he became convinced the college improperly noticed the public and that the board had no legal right to meet in closed session to discuss a salary increase. Zuniga believes the lack of transparency – as noted in his documents sent to Alejo – “appears intentional.”

In response, Trustee Glines reiterated: Board President Laura Perry cleared the special agenda with the college’s attorney, who confirmed the Gavilan board was in compliance with the Brown Act.

“My understanding, although it could be wrong, is that closed session is the proper venue for discussion of salaries and pay increases for all employees and employee groups,” he said. “We’ll certainly check with our attorney to see what his opinion is on this matter to make sure we fully complied with the law and are as transparent as we can be.”

Zuniga recalled his research in the weeks after the approval. He said it took the district five months to publish the Oct. 26 meeting minutes online. In the meantime, while he had questioned the lacking presence of the minutes online, he retrieved a hard copy.

“When you look at the minutes, you can see why they didn’t want to publish them,” Zuniga said.

Besides the vague agenda items listing “performance evaluation” and “public employee appointment,” he noted that the original agenda, unlike others for special meetings, did not list the primary reason for the meeting at the top of the page.

“The reason is, you can’t call a meeting for that purpose,” he said.

As Ewert summarized, the open meetings government code section, 54956, states a legislative body “shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, …”

Trustee Tony Ruiz, who had the lone dissenting vote on Kinsella’s contract changes, received the Oct. 26 notice by email, and had been given no further details before arriving at the special meeting, he said.

“I walked in and the conversation started about how he was a finalist,” Ruiz said, who lives in the Hollister area. “Then the discussion began on this contract.”

He received no details on the contract before the meeting. Ruiz publicly reasoned after his vote that Kinsella’s potential departure was not a justified reason for the immense pay increase. This week, he acknowledged the public had no chance to examine the changes before an approval.

“How can the public have any input if they don’t know what the specifics are?” said Ruiz, adding that the Gavilan board a few weeks back held a Brown Act workshop.

In fact, public agencies are required under the open meetings law to present such contracts in open session and allow for discussion, Ewert said. The Gavilan board announced the contract in open session after its approval in closed session – then released a press statement on the matter the following day.

Although the law may not be on LULAC’s side, Zuniga is hoping for a reversal on the contract.

“It’s almost like a slap in the face to the public and everybody,” Zuniga said. “I didn’t like it. The board needs to be held accountable, and the superintendent also.”

From Government Code section 54956:
• “The notice shall be delivered personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body.”
• “Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, as defined in subdivision (d) of Section 3511.1.”
Gavilan College could have had the decision rescinded if a similar “cure and correct” letter came to the board within 90 days of the approval. The only remedy left is “declaratory relief” – which acts more like a censure from the courts, but allows increased, potential enforcement if there is evidence pointing to a pattern of violations.